EXHIBIT 10.39


 


AXCESS INTERNATIONAL,
INC.


ADVISORY AGREEMENT


 


This Advisory Agreement is made on January 1, 2004 between NVW LLC.
(“NVW”) and Axcess, Inc. (the “AXCESS”). 
AXCESS is publicly traded on the Bulletin Board as OTCBB: AXSI.  AXCESS is a provider of hardware and
software solutions in the security industry. 
NVW will assist in a variety of areas relating to the financial,
strategic, and related developmental growth of AXCESS under the following terms
and conditions:


 


1.                                       Services of NVW.                                                 


 


For the Term of this Agreement
(as hereinafter defined), NVW will work cooperatively with AXCESS to assist
AXCESS’s growth as set forth below.  NVW
may provide AXCESS the following:


 


a.               Identify, evaluate, and advise on a variety of
options for AXCESS’ to undertake to enhance its current capital structure
including business model, financial operations, operational, managerial,
strategic, CRM, and strategic technology partnering,


 


b.               Prepare or coordinate with AXCESS and others in
the development of business plans, investor presentations, and financial
models, when appropriate;


 


c.               Advise and assist AXCESS with strategies relating
to asset development, asset enhancement and maximization of asset utilization,
including those associated with any intellectual property assets,


 


d.               Advise and assist AXCESS in connection with the
preparation of any registration statements, periodic or other SEC reports or
proxies, and


 


e.               Coordinate with, and advise on with the
activities of outside professionals, including without limitation attorneys,
accountants, market professionals, etc.


 


2.                                       Non-Exclusivity of Relationship.


 


It is understood and
acknowledged by AXCESS that NVW presently has, and anticipates having
throughout the Term, other clients for which it performs the same or similar
services to those to be performed in accordance herewith, and that NVW shall be
under no obligation to restrict its ability in any way to perform services for
any other client-companies.


 


It is understood that AXCESS,
from time to time, will employ investment bankers, analysts, finders, brokers,
public relations firms, and consultants to assist AXCESS.


 


3.                                       Term of Agreement.


 


The Agreement shall be
effective for a period of twelve (12) months, commencing on the date first
appearing above (the “Term of Agreement”).


 


4.                                       Compensation to NVW from AXCESS.


 


In consideration for the
services rendered by NVW to AXCESS pursuant to the Agreement (and in addition
to the expenses provided for in Paragraph 4 hereof), and throughout the Term of
Agreement, AXCESS shall compensate NVW as follows:


 


4.1                                  Monthly Retainer and Additional Compensation.  NVW
shall be compensated at the rate of $5,000 per month in advance. It being
understood that NVW’s role as a Finder as provided in Paragraph 6, and in
arranging merger and acquisitions or strategic partners will be subject to
separate fee agreement, which will negotiated between NVW and Axcess on a case
by case basis.


 


5.                                       Expenses.


 


It is anticipated that expenses
incurred in the fulfillment in connection with the services performed by NVW
pursuant to this Agreement Letter are included in the monthly retainer.  Any additional Compensation payable
hereunder, if any shall be addressed on a case-by-case basis and pre-approved
by an officer of AXCESS.


 


6.                                      Limitation on Use of Certain Information.


 


AXCESS acknowledges that all services and advice (written or oral)
provided by NVW to AXCESS in connection with the Agreement are intended solely
for the benefit and use of AXCESS in considering the subject matter to which
they relate, and AXCESS agrees that no person or entity (including any
shareholders of AXCESS) other than AXCESS shall


 

















 


be entitled or advised to make use of or rely upon the advice of NVW
provided pursuant hereto.  In any event, neither AXCESS nor any other
parties may use the NVW name in any public references, press releases or
public filings in connection with AXCESS without NVW’s prior written consent.


 


7.                                       Reliance by NVW on Accuracy of Information; 12(b)
5 Representation.


 


AXCESS recognizes and acknowledges that, in advising AXCESS and in
fulfilling the Agreement hereunder, NVW will use and rely on data, material and
other information furnished to NVW by AXCESS. 
AXCESS agrees that NVW may do so without independently verifying the
accuracy or completeness of such data, material or other information.  AXCESS represents and warrants that any such
data, material or information shall be true and accurate and shall not, as of
the time communicated, contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading.


 


8.                                       Confidentiality.


 


If any of the data, material or other information is non-public or confidential
when revealed or otherwise shared with representatives of NVW, and identified
in writing as such at the time it is revealed or shared  (“Confidential Information”), NVW and its
officers, directors, employees, agents and associates shall hold all
Confidential Information in complete and strict confidence and will not,
without prior written consent of AXCESS, in each instance, disclose any
Confidential Information, in whole or part, to any other person or for any
other purpose than is expressly approved by AXCESS in writing.  To the extent that AXCESS in writing
approves disclosure of Confidential Information, excepting information required
to be disclosed by legal process, law or regulation.  NVW agrees that each party or individual to whom such disclosure
is made shall be informed of the confidential nature of the information
disclosed and be obligated to sign standard non-disclosure agreements.


 


9.                                       Indemnification.


 


Each party (an “Indemnifying
Party”) hereby agrees to indemnify and hold the other party and its respective
affiliates, directors, officers, employees and agents (collectively, the
“Indemnified Parties”) harmless from, and to reimburse each of the Indemnified
Parties for, any loss, damage, deficiency, claim, obligation, suit, action, fee,
cost or expense of any nature whatsoever (including, but not limited to,
reasonable attorney’s fees and costs) arising out of, based upon or resulting
from any breach of any of the representations, warranties, covenants,
agreements or undertakings of the Indemnifying Party contained in or made
pursuant to this Agreement Letter.


 


10.                                 Nature of Agreement; Limitation on Authority of
NVW to Bind.


 


NVW shall perform its services
hereunder as an independent contractor and not as an employee of AXCESS or an
affiliate thereof.  It is expressly
understood and agreed to by the parties hereto that NVW shall have no authority
to act for, represent or bind AXCESS or any affiliate thereof in any manner,
except as may be agreed to expressly by AXCESS in writing from time to time.


 


11.                                 Miscellaneous.


 


a.               This Agreement Letter constitutes the entire
agreement and understanding of the parties hereto, and supersedes any and all
previous agreements and understandings, whether oral or written, between the
parties with respect to the matters set forth herein


 


b.               Any notice or communication permitted or required
hereunder shall be in writing and shall be deemed sufficiently given if
hand-delivered via courier or overnight service or sent (i) postage prepaid by
registered mail, return receipt requested, to the respective parties as set
forth below, or to such other address as either party may notify the other of
in writing:


 


	
  If to NVW, LLC to:

  	
  Robert Bertoldi, President

  
	
   

  	
  NVW, LLC.

  
	
   

  	
  350 Madison Avenue, 16th Floor

  
	
   

  	
  New York, NY 10003

  
	
   

  	
  xxx-xxx-xxxx

  
	
   

  	
   

  
	
  If to AXCESS, to:

  	
  Allan
  Griebenow, CEO

  
	
   

  	
  Axcess, Inc.

  
	
   

  	
  3280
  Commander Drive

  
	
   

  	
  Carrolton,
  TX 75006

  
	
   

  	
  xxx-xxx-xxxx

  



 

















 


c.               This Agreement Letter shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors, legal representatives and assigns.


 


d.               AXCESS
represents that it has the power to enter into this Agreement Letter and to
carry out its obligations hereunder.  ­This
Agreement Letter constitutes the valid and binding obliga­tion of AXCESS and is
enforceable in accordance with its terms. 
AXCESS further represents that this Agreement Letter does not conflict
with or breach any agreement to which it is subject or by which it is bound.


 


e.               This Agreement Letter may be executed in any number
of counterparts, each of whom together shall constitute one and the same
original document.


 


f.                 No provision of this Agreement Letter may be
amended, modified or waived, except in writing signed by all of the parties
hereto.


 


g.              This Agreement
Letter shall be construed in accordance with and governed by the laws of the
State of Texas, without giving effect to its conflict of law principles.  The parties hereby agree that any dispute
which may arise between them arising out of or in connection with this Agreement
Letter shall be adjudicated before a court located in Collin County, and they
hereby submit to the exclusive jurisdiction of the courts of the State of
Texas.


 


h.              AXCESS hereby acknowledges that it shall bear the
burden of proof in any action or proceeding involving a claim by NVW to any
Additional Compensation due hereunder arising out of any Compensable Event
involving a third party claimed by NVW to have been originally introduced to
AXCESS by NVW.


 


i.                 Whenever used in this agreement, Company
shall include its officers, directors, employees, agents, associates,
affiliates, subsidiaries, successors and assigns.


 


 


If the
foregoing correctly sets forth the understanding between NVW and AXCESS with
respect to the foregoing, please so indicate by signing in the place provided
below, at which time this Agreement shall become a binding agreement.


 


 


	
   

  	
   

  	
  AXCESS Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ ALLAN GRIEBENOW

  
	
   

  	
   

  	
   

  	
  Allan Griebenow

  
	
   

  	
   

  	
   

  	
  President

  
	
   

  	
   

  	
   

  
	
  Accepted and Agreed:

  	
   

  	
   

  
	
  NVW, LLC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ ROBERT BERTOLDI

  	
   

  	
   

  	
   

  
	
  Robert
  Bertoldi